Historical Development of The Law On HUman Rights

11/17/2017 SUPREME COURT REPORTS ANNOTATED VOLUME 191
VOL. 191, NOVEMBER 27, 1990 739

Historical Development of the Laws on Human Rights
ANNOTATION
HISTORICAL DEVELOPMENT OF THE LAWS ON HUMAN

RIGHTS
By *
DAVID G. NITAFAN
1. Introduction, p. 739
2. The Philosophers and Human Rights, p. 740
3. The Documents, p. 743
4. Human Rights Development in the Philippines, p. 757
5. Comments and Recommendations, p. 763
1. Introduction
The decision 1
of the Second Division of the Supreme Court in G.R.
No. 90314 is one of the first landmark/authoritative adjudication
ever made in this jurisdiction relative to violations of human rights.
It settles the particular legal issue (among others) that unjustified or
unwarranted discrimination against a person in the matter of
employment is an actionable wrong under Philippine law and before
Philippine courts.
It is the purpose of these annotations to attempt to trace the
historical development of the laws on Human Rights, both
* Judge, Regional Trial Court, National Capital Judicial Region, Manila.

1 Spouses Shauf v. Court of Appeals, et al., November 27, 1990Regalado, J.
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http://www.central.com.ph/sfsreader/session/0000015fc858d5c8f1eec8b1003600fb002c009e/t/?o=False 1
740 SUPREME COURT REPORTS ANNOTATED

internationally and in the Philippines.

There are many perspective of human rights on which many
authors and statesmen have spoken and written, and which may be
appropriate subjects of separate annotations at opportune times in
the future.
2. The Philosophers and Human Rights
As early as before the Birth of Christ (BC), some political thinkers

had already their thoughts on human rightson society which
inevitably involved the State and the individual components thereof
although they have not used the term. Among these early political
2 3
thinkers may be mentioned the following: Socrates, Plato,
4 5
Aristotle, and Cicero.
Socrates was known to have implicitly espoused the theory that a
society which does not allow critical discussion that would make
men better 6
is contradicting the very purpose that justifies its
existence. Socrates theory of form became the central doctrine of
Plato, an intense pro-Socratic advocate and one of the most brilliant
figures in the history of Western political thought, in his Phaedo.
Plato felt that learning could be achieved 7
only through discussion
and shared inquiry. His Dialogues, show his pro-Socratic
inclinations in which he suggested that a good society should
8
have
functional classes: legislators, protectors, and producers, Aristotle,
on the other hand, interested himself in constitutions and forms of
government in the Greek City states; to him political science is
concerned with man as a part of the living organism of the state, and
this demands an analysis of the composition of government, includ-
2 470-399 B.C.
3 428-348 B.C.
4 384-322 B.C.
5 106-43 B.C.
6 Perhaps his theory may have been the origin of present-day freedom of speech
and expression, and also academic freedom.
7 Grouped into three major sets: dialogue of inquiry, dialogue of speculation, and
dialogue of criticism and application.
8 This substantially resembles the tripartite distribution of governmental powers
into legislative, judicial and executive.
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VOL. 191, NOVEMBER 27, 1990 741

ing the citizenry. He theorized that since man is by nature a political

animal, actualization of his full potentials occurs as he participates
in a community or society. He considered the family, the community
and the state as vehicles for morality and for the good life of man. In
examining the various kinds of government, he found virtue in
monarchy, aristocracy, and what he called constitutional timocracy,
but warned that monarchy can easily develop into tyranny,
aristocracy into oligarchy, and constitutional timocracy into
disorganized democracy. He said mob rule is one of the undesirable
features of democracy, although he contended that with an
enlightened citizenry and good educational opportunity,
constitutional democracy may qualify precisely for the ideal form of
government. Basically, he contended, the best state is the one that
come into being and achieves its end through the highest good as
manifested by the citizens individually and collectively. Marcus
Tullius Cicero, one of the most active political scholars of his time
and who received training in civil law from the jurist Quintus
Mucius Scaevola, also worked on political theories. His De
Republica and De Legibus, intellectualizations of Roman political
ideals and essentially adaptations of Platonic theories to the Roman
experience, became the vehicles for his firm belief in the rule of law
and guidance of an enlightened governing class under a
constitutional government. He abhored violence and war.
The works of these philosophers became the subject of studies of
later Political Science writers and scholars, but it was not after so
many centuries later that other political thinkers and writers
reappearedduring9
the 15th century.
John Milton, an English poet whose prose works were usually
concerned with the political and religious controversies that raged
during a time of upheaval in English history: The Civil War, the
Commonwealth, and the Restoration, wrote The Tenure of Kings and
Magistrates, maintaining the theoretical right of the people to bring
their rulers to account, and after due trial, to depose and even
execute a monarch who has become a tyrant. The treatise, published
in February of 1649, just after the execution of Charles I, was
obviously a justification of extra-
9 1608-1674.
742

legal resolution
10
and the judgment against the king. Algernon
Sidney (1622-1683) was an English political leader and advocate of
constitutional liberties. 11
The natural law theory espoused by John Locke, found its
profound impact on later political scientists. The political, social and
economic questions of his day, particularly those of parliamentary
versus monarchial dominance in government and of religious
toleration, played an important role in the formulation of this
theories on government and religion. His lectures on the law of
nature at Oxford, which were published in 1954, show that the
protection of individual liberty, as well as the delimitations of the
proper bounds of freedom, is found in those laws that issue from
Gods will. He contended that mans rationality and humanity are
functions of living in accordance with natural law, and that no
magistrate, whether king or parliament, should violate these laws or
make civil laws incompatible with them. His concept of law is an
embodiment of the Christian morality. In his two Treaties of
Government, he at first urged that the country should consent to the
divine right of kings and their parliaments to rule, only to argue
against it later in favor of the social contract theory and by consent
of the governed. In his view, mans liberty and his rights are always
protected by the law of nature; that man is naturally virtuous, and
that the apparatus of government was fundamentally designed to
protect individual rights, including his property, and incidentally it is
a means to the end of fostering the virtue of man. He is well known
for distinguishing the various functions of governmentjudicial,
executive, and legislativefor making consent the only legitimate
basis for civil government, and for insisting that the people have the
right to replace their representatives if, in the light of the law of
nature, they fail to govern for the good of the
12
people.
Baron de la Brede et de Montesquieu was the French political
philosopher and writer who helped lay the foundations of modern
political science.
10 1622-1683.
11 1632-1704.
12 1689-1755.
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VOL. 191, NOVEMBER 27, 1990 743

3. The Documents
The Magna Carta of June of 1215a grant of privileges conceded

by King John of England to his subjects. The Charter was achieved
through a rebellion that had deep-seated causes. The Angevin kings
Henry II, Richard I, and Johnexploited England at a time of
acute inflation, for the defense of their possessions in France. They
extended their demands to military service from their vassals for
increasingly frequent military campaigns, invented new forms of
taxation, supervised local governments more stringently, and
developed the feudal and judicial prerogatives of the crown as
means of financial exactions and political control. The loss of
Normandy to the French in 1204 only led John to redouble these
efforts. In 1212 a small group of resentful barons conspired against
him. The plot was discovered and the leaders fled. However, they
were able to persuade the agents of Pope Innocent III, with whom
John had quarreled, that they had risen in the cause of the church,
and they were restored to their lands as part of Johns settlement
with Pope Innocent in 1213. John bolstered his position by
surrendering his kingdom to papal vassalage, granting freedom of
election for prelates, and taking the cross. This cemented an alliance
with the papacy but it did not contain the rapid spread of opposition
after the failure of his military campaigns in Faldners and Poiton in
1214. Negotiations between the king and the barons at London in the
early part of 1215 were inconclusive, so both parties appealed to
Rome. The results of papal arbitration proved unacceptable to the
barons. The barons captured London in May and this compelled
John to negotiate at Runnymede on preliminary terms embodied in
the Articles of the Barons. Magna Carta was part of a general
settlement agreed there13 on June 19, 1215. The Charters most
famous chapter of all, required the king himself to conform to
lawful process: No freeman shall be taken or deprived or outlawed
or exiled or in any way ruined, nor will he go or send against him,
except by lawful judgment of his peers or by the law of the land; a
very popular phrase in due process adjudica-
13 Chapter 39/29.
744

14
tions. It also required that justice should not be sold or denied and
that penalties should be assessed fairly. It confirmed the liberties of
London and other towns and provided for free movement in and out
of the country for merchants and others. At Runnymede, King John
swore on oath to observe the terms of the Charter.
The Charter failed, however, as an immediate settlement. The

inquiries into local governments provoked disorder. At King Johns
request the pope annulled the Charter on August 24, 1215, on the
ground that it had been exacted by force. The death of John in a war
the following year, the ascension to the throne of Henry III, then
only a boy of nine, and the readiness of new Pope Honorious III to
approve the Charter as a route to peace, left room for a compromise.
The Magna Carta was therefore, reissued twice, on November of
1216 and in September-November 1217, under the seals of the papal
legate and of William Marshal, earl of Pembroke.
Although the Charter was much concerned with feudal matters, it
was a concession to all freemen of our realm. It stipulated that
those who receive their liberties from the king shall in their term
observe them toward their men. In placing all freemen on the same
footing, it owes much to the legal provisions of Henry II that
embodied the same principle. This was the greatest historical
significance of the Magna Carta.
The Magna Carta was not unique in its own time. Similar
concessions were made in France, Germany, Hungary, and the
Spanish kingdoms in the 13th and 14th centuries. It was exceptional,
however, because of its prolonged influence on legal and
constitutional thought in England and among the English-speaking
nations as a statement of fundamental, ancient law, enshrining
principles essential to the well-being of the individual.
The Petition of Right, was a celebrated document drawn up by
the English House of Commons in 1628, setting forth grievances
against King Charles I. The king had levied taxes without approval
of Parliament; he had illegally imposed loans on individuals; and
he had illegally imprisoned persons who re-
14 Privileges were then being purchased from the King.
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fused the loansall in order to pursue external policies as

vacillating as they were unsuccessful. He lent the English fleet to
France to help the Catholic King Louise XIII and his first minister,
Cardinal Richelieu, in the seige of the Hugvenot fortress at La
Rochelle. Then he switched sides and sent ill-equipped English
troops in a vain effort to support La Rochelle. On their return to
England, the troops were billeted in private households, especially
those whose owners had refused to make loans to the king.
Undisciplined and often unpaid, these soldiers begun plundering,
and consequently Charles I decreed martial law. This measure

further antagonized people against the crown. This was the reason
why modern bill of rights usually include the provision that private
property shall not be taken for public use without just compensation,
and it gave rise to the 3rd Amendment to the U.S. Constitution.
The Petition of Right declared that (1) no tax or loan may be
demanded without the common consent by act of Parliament; (2)
no freeman may be imprisoned or detained without due formality of
legal cause; (3) soldiers should not be billeted in private households
without payment; and (c) martial law should not be proclaimed in
time of peace. The king at first rejected the petition, but urgently
needing funds, he yielded after a week and signed it. Parliaments
victory proved to be temporary, but following a bloody civil war
Charles died on the scaffold in 1649. The Petitioner of Right is,
however, a landmark in English history and constitutional
development and echoed in the Ameri-can Declaration of
Independence and in the United States Constitution.
The Declaration of Rights is a document presented to William of
Orange and his wife Mary on February 13, 1689, which contained
the conditions on which the English Parliament would recognize the
Prince and Princess of Orange as king and queen of England. It
declared illegal a number of James IIs practices, such as suspending
legislations, excepting individuals from the provisions of laws,
maintaining a standing army without the consent of Parliament, and
instituting prerogative courts and extraparliamentary taxations.
Parliament, it declared, should be summoned often and should have
its privileges of free speech and debate confirmed. Its elections
should be free from royal attempts to secure partisan members. All
Protestants in Eng-
746

land were to be guaranteed the right to bear arms, and the new
monarchs were to promise that no excessive bails or fines would be
exacted or cruel and unusual punishments inflicted.
James II had fled to France on December 21, 1688. On the
following February 1, the Convention Parliament assembled at
Westminster to determine the succession to the throne, from which
James was declared to have abdicated by his flight from the
kingdom, and to end the abuses that had led to the Glorious
Revolution. William and Mary accepted the Declaration of Rights on
February 23, and it was subsequently, passed through Parliament to
become the Act of Rights and re-echoed in the American Bill of
Rights, with minor changes.
The inexorable movement for more individual rights had spread

to the new world. In America a document was drawn up by the
Stamp Act Congress of 1765, known as the Declaration of Rights
and Grievances. This document denied the authority of the British
Parliament to tax American colonists. Nine colonies sent twenty-
seven delegates to New York in October 1765 to register their
opposition to the Stamp Act recently passed by Parliament, levying
an internal tax on all printed or formally written matter in the
colonies. The assembly became known as the Stamp Act Congress,
and in their Declaration of Rights and Grievances the delegates
denied that Parliament had the right to tax the colonies at all. The
power to tax, they declared, lay exclusively in the hands of the
elected colonial assemblies. They also denied the contention that the
colonies were virtually represented in Parliament by English
delegates and opposed the notion of giving America seats in the
House of Commons, where the colonial representatives would be a
small minority.
Generally, the constitutional position that emerged in the
declaration was this: although Parliament might legislate for the
empire (supervise external affairs and regulate trade), it should
otherwise leave the colonies alone, particularly as to taxation. The
claims of the declaration were elaborated in the Declaration of
Rights issued by the Continental Congress in 1774 and in the
American Declaration of Independence.
Next to the federal Constitution of 1787, the Declaration of
Independence has been the single most important state paper in
American history. Written largely by Thomas Jefferson, it was
adopted on July 4, 1776, by the Second Continental Congress,
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meeting in Philadelphia at the Pennsylvania State House (now

Independence Hall). The historian Julian P. Boyd once said it was
the great apologia of the American Revolution, intended to
explain and to justify to the American public, Britain, the world, and
posterity the colonial decision to separate from Britain. For the men
of the Resolution, it servedboth at the time of its adoption and
throughout the ensuing War for Independenceas a succinct and
compelling statement of the principles for which they fought.
The Declaration originated from a resolution introduced by
Richard Henry Lee, of the Virginia delegation, on June 1776. One
June 11, a committee of five was appointed to draw up a formal
Declaration of Independence. Thomas Jefferson of Virginia, only 33
years old and a member of Congress for less than a month; John
Adams of Massachusetts, an outspoken and tireless advocate of
independence for at least six months; Benjamin Franklin of

Pennsylvania, the colonies most famous citizen; Roger Sherman of
Connecticut; and Robert R. Livingston of New York, composed the
Committee. The Lee Resolution declared that these United
Colonies are, and of right ought to be free and independent States,
that they are absolved from all allegiance to the British Crown, and
that all political connections between them and the State of Great
Britain is, and ought to be, totally dissolved. Apparently at Adams
insistence and because of his reputation as an accomplished literary
stylist, Jefferson wrote the draft of the declaration with a few verbal
amendments by other committee members, notably Adams and
Franklin. It was reported to the Continental Congress on June 28.
For the next two days a committee of the whole considered the draft
of the declaration and, after deleting a number of passages and
phrases and amending many others, the Congress adopted it without
dissent on July 4.
The Declaration of Independence is divided into five parts: (1)
the preamble; (2) a succinct statement of underlying political
theories; (3) a series of charges against George III of Britain; (4) a
general description of unsuccessful attempts to secure redress of
grievances within the empire; and (5) an assertion of the
independent status of the 13 states. For ready reference, it is
pertinent to quote the salient portions which have bearing on human
rights:
748

When in the course of human events, it becomes necessary for one people
to dissolve the political bands which have connected them with another, and
to assume among the powers of the death, the separate and equal station to
which the Laws of Nature and of Natures God entitle them, a decent respect
to the opinions of mankind requires that they should declare the causes
which impel them to the separation.We hold these truth to be self-evident,
that all men are created equal, that they are endowed by their Creator with
certain inalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness.That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the
governed.That whenever any form of Government becomes destructive of
these ends, it is the Right of the People to alter or abolish it, and to institute
new Government, laying its foundation on such principles and organizing its
powers in such form, as to them shall seems most likely to effect their Safety
and Happiness. x x x
xxxxxxxxxxxxxxxxxxxxxxxxx
We, therefore, the Representatives of the United States of America, in
General Congress, Assembled, appealing to the Supreme Judge of the world
for the rectitude of our intentions, do, in the Name, and by Authority of the
good People of these Colonies are, and of Right ought to be FREE AND
INDEPENDENT STATES: that they are Absolved from all Allegiance to
the British Crown, and that all political connection between them and the
State of Great Britain, is and ought to be totally dissolved; and that as Free
and Independent States, they have full Power to levy War, conclude Peace,
contract Alliances, establish Commerce, and do all other Acts and Thing
which Independent States may of right do.And for the support of this
Declaration, with a firm reliance on the protection of Divine Providence, we
mutually pledge to each other our Lives, our Fortunes and our sacred
Honor.
In continental Europe peoples demand for individual rights also

took shape in a formal document. The Declaration of the Rights of
Man and the Citizen, which was the bill of rights of the French
Revolution, was decreed by the revolutionary National Assembly on
August 27, 1789. This document has been referred to as the death
certificate of the old French regime and the symbol of the new. The
declaration was also rooted in the philosophy of natural rights,
which held that all men were entitled to a basic measure of liberty
and equality and that a government that did not assure it was
illegitimate.
The principles of the declaration were considered by its au-
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thors to be universal in scope. At the same time, the authors were

taking aim against particular aspects of the old regime in France.
The rights enumerated by the declaration included (1) equality
before the law in taxation and in opportunity for employmentto
replace the system of aristocratic privilege; (2) self-determination
and representative governmentto replace royal absolutism; and (3)
individual liberty and the rule of lawto replace the arbitrary
judicial practices of the monarchy.
Hereunder is the text of the Declaration:
The representatives of the French people, constituted as a National

Assembly, considering that ignorance, disregard or contempt of the rights of
man are the sole causes of public misfortune and governmental corruption,
have resolved to set forth a solemn declaration of the natural, inalienable
and sacred rights of man; in order that this declaration, by being constantly
present to all members of the social body, may keep them at all times aware
of their rights and duties; that the acts of both the legislative and executive
powers, by being liable at every moment to comparison with the aim of all
political institutions, may be the more fully respected; and that demands of
the citizens, by being founded henceforward on the simple and incontestible

principles, may always redound to the maintenance of the constitution and
the general welfare.
The Assembly consequently recognizes and declares, in the presence and
under the auspices of the Supreme Being, the following rights of man and
the citizen:
I. Men are born and remain free and equal in rights. Social
distinctions may be based only on common utility.
II. The aim of all political associations is to preserve the natural and
imprescriptible rights of man. These rights are liberty, property,
security and resistance to oppression.
III. The principles of sovereignty rests essentially in the nation.
Nobody and no individual may exercise authority which does not
emanate from the nation expressly.
IV. Liberty consists in the ability to do whatever does not harm
another; hence the exercise of the natural rights of each man has no
limits except those which assure to other members of society the
employment of the same rights. These limits can only be
determined by law.
V. Law may rightfully prohibit only those actions which are injurious
to society. No hindrance should be put in the way of anything not
prohibited by law, nor any man be forced to what the law does not
require.
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VI. Law is the expression of the general will. All citizens have the right
to take part, in person or by their representatives, in its formation. It
must be the same for all whether it protects or penalizes. All
citizens being equal in its eyes are equally admissible to all public
dignities, offices and employments, according to their capacity, and
with no other distinction than that of their virtues and talents.
VII. No man may be indicted, arrested or detained except in cases
determined by law and according to the forms which it has
prescribed. Those who instigate, expedite, execute or cause to be
executed arbitrary orders should be punished; but any citizen
summoned or seized by virtue of the law should obey instantly, and
renders himself guilty by resistance.
VIII. Only strictly necessary punishments may be established by law, and
no one may be punished except by virtue of a law established and
promulgated before the time of the offense, and legally put into
force.
IX. Every man being presumed innocent until judged guilty, if it is

deemed indispensable to keep him under arrest, all rigor not
necessary to secure his person should be severely repressed by law.
X. No one may be disturbed for his opinions, even in religion,
provided that their manifestation does not trouble public order as
established by law.
XI. Free communication of thought and opinion is one of the most
precious of the rights of man. Every citizen may therefore speak,
write and print freely, on his own responsibility for abuse in cases
determined by law.
XII. Preservation of the rights of man and the citizen requires the
existence of public force. These forces are therefore instituted for
the advantage of all, not for the private benefit of those to whom
they are entrusted.
XIII. For maintenance of public forces and for expenses of
administration, common taxation is necessary. It should be
apportioned equally among citizens according to their capacity to
pay.
XIV. All citizens have the right, by themselves or through their
representatives, to have demonstrated to them the necessity of
public taxes, to consent to them freely, to follow the use made of
the proceeds and to determine the shares to be paid, the means of
assessments and collection and the duration.
XV. Society has the right to hold accountable every public agent of
administration.
XVI. Any society in which the guarantee of right is not assured or the
separation of powers not determined has no constitution.
XVII. Property being an inviolable and sacred right, no one should be
deprived of it except for an obvious requirement of public
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VOL. 191, NOVEMBER 27, 1990 751

necessity, certified by law, and then on condition of a just compensation

in advance.
In American constitutional law and history the term Bill of Rights

usually signifies the first 10 amendments to the Constitution of the
United States. These amendments, more precisely the first eight of
them, specify certain basic freedoms and procedural safeguards of
which the individual may not be deprived by governmental power.
Taken together, these specified freedoms and protections are the core
of American civil liberty and provide the constitutional basis for
judicial protection of the rights of the individual. Of particular
importance are the provisions of the 1st Amendment (freedoms of
religion, speech, press, assembly and petition); the 4th Amendment

(prohibition of unreasonable searches and seizures); the 5th
Amendment (prohibitions against double jeopardy and self-
incrimination; no taking of life, liberty or property without due
process of law; requirement of fair compensation when private
property is taken for public use); the 6th Amendment (procedural
safeguards in criminal prosecutions); and the 8th Amendment
(prohibitions against excessive bail and cruel and unusual
punishment.
The American Constitution itself, as submitted to the 13 states
for ratification in 1787, contained several provisions of major
significance for civil libertiesfor example, the clauses in Article I,
section 9, forbidding bills of attainder, ex post facto laws, and
suspension of the writ of habeas corpusbut it did not include a
catalogue of individual rights and immunities. The probable
explanation for this omission is that the delegates to the
Constitutional Convention did not expect the new national
government to expand its regulatory activities to any great extent,
and therefore thought that there would be few occasions when
federal power would come into collision with individual interests
and concerns. Liberty-conscious Americans of the
postRevolutionary period were, however, unwilling to take the risk
that a powerful national government might some day move to impair
individual liberty.
The Bill of Rights tradition was indeed so strong at the time of
ratification of the Constitution that by 1789 bills of individual rights
have been written into eight state constitutions. Of these
752

state documents the Virginia Bill of Rights, drafted in large part by

George Mason and adopted in Virginia in 1776, was the most
influential model for what became the Bill of Rights of the national
Constitution. A Virginian, James Madison, was a principal
draftsman of the first 10 amendments to the United States
Constitution, and use of the Virginia Bill of Rights as a drafting
model was evident from a comparison of the two texts.
During all the time that the Federal Constitution was before the
state conventions for ratification (1787-1788), strong concern was
expressed in every state at the absence from the document of a
detailed Bill of Rights. Criticisms were severe in Virginia and
Massachusetts, for example, and North Carolina went so far as to
make its ratification of the Constitution expressly conditioned on the
adoption of a Bill of Rights. Historians are agreed, generally, that the
Constitution of the United States might never have been ratified by
the various states if its proponents had not given the assurance that
the proposal of a bill of individual rights would be an early order of
business at the first Congress convened under the new Constitution.
This pledge was honored, and the first 10 Amendments, which
constitute the Bill of Rights, were submitted together in 1789 and
their ratification by the states was completed on December 15, 1791.
The first 10 Amendments are, therefore, virtually contemporaneous
with the Federal Constitution itself.
Formal bills of rights or their equivalentsalthough too often
disregardedhave been written by the governments of most nations
of the world. In the Philippines, some sort of individual rights were
included in the Philippine Bill of 1902, reiterated in the Philippine
Autonomy Act of 1916.
In Warfare, the so-called International Humanitarian Law also
took shape. The International humanitarian law protects man against
the consequences of war. Humanitarian Law is a branch of public
international law which owes its inspiration to a feeling for
humanity and which is centered on the protection of the individual,
the purpose of which is to alleviate the sufferings of all the victims
of armed conflicts who are in the power of their enemy, whether
15
wounded, sick or shipwrecked, prisoners of war or civilians.
15 Jean Pictet on Humanitarian Law, quoted in Origin and Devel
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In 1859, Henry Dunant was travelling across the war ravaged plains
of Lombardy. He arrived in the vicinity of Solferino just after a
terrible battle, and was horrified to see thousands of wounded
soldiers abandoned without care, facing certain death. After
organizing relief activities on the spot, improvising them with the
means at hand, Dunant undertook to tell the world what he had seen,
by writing A Memory of Solferino, a book which was to stir the
soul of Europe. In this story, which foreshadowed the age of modern
news reporting, he proposed a remedy to the deficiencies of army
medical services by training voluntary relief workers in peacetime
and securing for them a neutral status, even on the battlefields.
Thereafter, four citizens of Geneva, Gustave Moyneir, General
Guilaume-Henri Dufour, Dr. Louis Appia and Dr. Theodore
Maunoir, joined Dunant in setting up the International Standing
Committee for Aid to Wounded Soldiers, which subsequently
became the International Committee of the Red Cross (ICRC). By
dint of enthusiasm and perseverance, they succeeded in persuading
the Swiss Government to convene in 1864 an international

conference, in which the representatives of twelve countries
participated, the tangible result of which was the signing in that
same year of the Geneva Convention for the Amelioration of the
Condition of the Wounded in Armies in the Field. This marked the
beginning of international humanitarian law. In 1899, at the Hague,
another convention was signed, adopting the principles of the
Geneva Convention to warfare at sea. In 1906, the provisions of the
1864 Convention were improved and supplemented. In 1907, the
Fourth Hague Convention defined the categories of combatants
entitled to the status of prisoner of war when captured, and to a
specified treatment during the whole period of their captivity. These
three Conventions were reaffirmed and further developed in 1929. In
1949, the four16 Geneva Conventions, which are at present in force,
were adopted.
opment of International Humanitarian Law, Francoise Bory, International

Committee of the Red Cross.
16 Origin and Development of International Humanitarian Law, Ibid., pp. 9-11.
754

The outbreak and conclusion of the First World War, with its
attendant escalation of human suffering and oppression, provided
fresh impetus for the promotion of human rights. But it was to take
another war before the states could tackle the question of human
rights, and consider systems for their protection and promotion on
an international scale. If there was any single catalyst that gave
urgency to the need for international action in the sphere of human
rights, it was the behavior of the Facist governments towards
minorities in their countries, and towards people in conquered
territories. Even while the second World War was still being waged,
the preservation of human rights and justice was made one of the
peace aims of the Allied Powers. At the conclusion of the war,
machineries of retribution were created to punish war criminals. For
the first time, the concept of crimes against humanity was
introduced into the Charter of the International Military Tribunal,
17
and punitive measures were levelled against their perpetrators.
By the time the nations met for the drafting of the Charter for the
United Nations, there was almost universal support for what
Winston Churchill called the enthronement of human rights in
international affairs. Although there was strong support for the
inclusion in the United Nations Charter of an International Bill of
Rights, it was the general feeling that this would delay the adoption
of the charter. Nevertheless, the Charter of the United Nations
makes reference to human rights and fundamental freedoms in a
number of clauses. In the Preamble, the peoples of the United
Nations express their determination to reaffirm faith in fundamental
human rights, in the dignity and worth of the human person, in the
equal rights of men and women and of nations large and small. The
words promoting and encouraging respect for human rights and
fundamental freedoms appear, with some variations, in Article I, on
the purposes and principles of the United Nations; in Article 13, on
the functions and powers of the General Assembly; in Article 62, on
the functions and powers of the Economic and Social Council; and
in Article 76, on the basic
17 Marcos, A Perspective of Human Rights and the Rule of Law, pp. 6-7.
755
VOL. 191, NOVEMBER 27, 1990 755

objectives of the International Trusteeship System. Article 8 of the

UN Charter provides that The United Nations shall place no
restrictions on the eligibility of men and women to participate in any
capacity and under conditions of equality in its principal and
subsidiary organs. In Article 56, all Members of the United Nations
pledge to take joint and separate action in cooperation with the
Organization for the achievement of the purposes enumerated in
Article 55, including the promotion of universal respect for, and
observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion. In Article
68, the Economic and Social Council is empowered to set up
commissions in economic and social fields and for the promotion
of human rights.
Consequently, a plan was evolved for the preparation of a
separate International Bill of Rights by a special Commission of
Human Rights. Mrs. Eleanor Roosevelt of the United States was
elected Chairperson of the Commission, and the Philippine Delegate
was designated a member of the Commission. The discussions of the
Commission immediately revealed the divergence of viewpoints
among the Member States. Subsequently, it was conceived that the
preparation of the International Bill of Rights should consist of three
parts: a Universal Declaration of Human Rights, specifying the
rights to be promoted and protected by the United Nations, and two
international covenants or convention on human rights, one covering
political and civil rights and another covering social and economic
rights. The Declaration would define the fundamental rights and

freedoms to be promoted by the United Nations; the covenants
would ensure that the Member States would abide by them. The
Commission finished its draft of the Universal Declaration of
Human Rights, and the same was immediately submitted to the
United Nations General Assembly for discussion and approval. It
passed the assembly with 48 voting approval, none dissenting, and
10 abstaining. The abstentions were mainly the communist countries
of Eastern Europe, including the Soviet Union, and evidently the
abstention was an expression of reservation not about the contents of
the Declaration, but about the covenants that were to be drafted
afterwards. In any case, the Universal Declaration itself was a
considerable breakthrough, primarily because of its scope. The
rights enumerated in the
756

Declaration cover three groups of rights: civil and political rights,

18
social and economic rights, and the rights of peoples.
The Universal Declaration of Human Rights is the basic
international pronouncement of the inalienable and inviolable rights
of all members of the human family. The Declaration was
proclaimed through a resolution of the General Assembly of the
United Nations on December 10, 1948 as the common standard of
achievement for all peoples and all nations in respect for human
rights. It lists numerous rightscivil, political, economic, social and
culturalto which people everywhere are entitled. While it was
conceived as a statement of objectives to be achieved by
Governments and, as such, was not part of binding international law,
the fact that it has been accepted by so many Nations has given it
considerable weight. Its provisions have been cited as justification
for numerous United Nations actions, and have inspired or been
used in many international conventions. In 1968, the United Nations
International Conference on Human Rights agreed that the
Declaration constitutes an obligation for the members of the
international community. The Declaration has 19
also exercised a20
significant influence on national constitutions, on national laws
21
and in some cases on court decisions of several member Nations.
18 Marcos, Ibid., pp. 8, 9, 10.

19 See Sections 17-19, Article XIII of the 1987 Constitution.
20 See Preliminary Chapter on Human Relations, Civil Code of the Philippines.
21 As early as 1951, the Supreme Court of the Philippines, through Mr. Justice
Tuason, cited the Universal Declaration of Human Rights to justify the release from
indefinite detention of stateless Russians (Borovsky v. Commissioner of Immigration
(90 Phil. 107); Mejoff v. Director of Prisons (90 Phil. 70); also Chirskoff v.
Commissioner of Immigration (90 Phil. 256) and Andreu v. Commissioner of
Immigration (90 Phil. 347). In Marcos v. Manglapus (177 SCRA 668), however, the
majority of the Supreme Court indulged in hairsplitting distinction between the
provisions of the Declaration (Art. 13) and the International Covenant on Civil and
Political Rights (Art. 12), with the apologia that the pronouncement should not be
taken as a precedent. In Shauf v. Court of Appeals (G.R. No. 90314, Nov. 27, 1990),
the
757
VOL. 191, NOVEMBER 27, 1990 757

Almost twenty years after the adoption of the Universal Declaration

of Human Rights, the General Assembly of the United Nations
adopted the International Covenants on Human Rights, which are
treaties whose States parties undertake to respect, ensure and take
steps for the full achievement of a wide range of rights. There are
two such Covenants: the International Covenant on Economic,
Social and Cultural Rights and the International Covenant on Civil
and Political Rights, both of which were opened for signatures in
December, 1966 and entered into force in 1976. The Covenants
recognize and define in more detail most of the rights set out in the
Universal Declaration, and deal with some additional rights as well.
Each Covenant also sets up a mechanism through which United
Nations bodies oversee the implementation by States parties of the
rights protected. Thus, a Committee on Economic, Social and
Cultural Rights has been established by the Economic and Social
Council to review States parties progress in implementing the
Covenant on Economic, Social and Cultural Rights. The
implementation of the Civil and Political Covenant is entrusted in
the hands of another body of independent experts, the Human Rights
Committee.
For a complete texts of the Declaration and the Covenants, please
see The International Bill of Human Rights, a United Nations
issuance, New York, 1988.
4. Human Rights Development in the Philippines
As may be observed in the foregoing, human rights historical

development coincides with that of the Bill of Rights.
It can be said that the idea and historical development of human
rights in the Philippines dated back as early as the Spanish colonial
period when, among the acts then penalized as offenses under the
Spanish Penal Code that was extended to these Islands were the
crimes against persons (destruction of
Second Division of the Supreme Court settled the legal postulate (among others)
that unjustified or unwarranted discrimination in the matter of employment is an
actionable wrong under Philippine law and in a Philippine Court.
758

life) and crimes against personal liberty and security. The Civil Code
of Spain of 1889, also extended to the Philippines, contained a
provision to the effect that the conceived child shall be considered
born (or has personality) for all purposes that are favorable to it,
provided it be born later alive
22
at the time it is completely delivered
from the mothers womb. These provisions obviously have for their
purpose recognition and protection of a persons basic right to live.
The belief of the Filipinos in the primacy of human rights is not
of recent origin. Their first Constitution,
23
framed in 1898, contained
twenty-one articles on human rights. It was, however, short-lived.
Their independence was transient as Spain ceded the Philippines to
the United States under the Treaty of Paris, signed at the close of
that year and ratified in April of 1899. The Filipinos fought the
Americans but superior force of arms prevailed. The Philippines 24
thus became an unincorporated territory of the United States.
With the advent of American sovereignty over the country, the
American Bill of Rights was extended to these Islands (except the
right to bear arms and the right to trial by jury). Thus, President
McKinley made specific instructions that the Philippine
Commission should bear in mind, and the people of the
(Philippine) Islands should be made plainly to understand, that there
are certain great principles of government which have been made the
basis of our governmental system, which we deem essential to the
rule of law and the maintenance of individual freedom, x x x (and)
that there are also certain practical rules of government which we
have found to be essential to the preservation of these great
principles of liberty and law, and that these principles and these rules
of government must be established and maintained in their islands
for the sake of their liberty and happiness x x x, and consequently
he mandated that upon every division and branch of the
Government of the Philippines (to be established by the Americans)
22 Articles 29 and 30, Civil Code of 1889, now Articles 40 and 41 of the Civil
Code of the Philippines.
23 Malolos Constitution, Titles III and IV, Articles 5 to 25.
24 Fernando, C.J., Perspective on Human Rights, p. 1.
759
VOL. 191, NOVEMBER 27, 1990 759

must be imposed these inviolable rules:
That no person shall be deprived of life, liberty, or property without due

process of law; that private property shall not be taken for public use
without just compensation; that in all criminal prosecutions the accused
shall enjoy the right to a speedy and public trial, to be informed of the
nature and cause of the accusation, to be confronted with the witnesses
against him, to have compulsory process of obtaining witnesses in his favor,
and to have the assistance of counsel for his defense; that excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishment inflicted; that no person shall be put twice in jeopardy for the
same offense or be compelled in any criminal case to be a witness against
himself; that the right to be secure against unreasonable searches and
seizures shall not be violated; that neither slavery nor involuntary servitude
shall exist except as a punishment for crime; that no bill of attainder or ex
post facto law shall be passed; that no law shall be passed abridging the
freedom of speech or of the press or of the right of the people to peaceably
assemble and petition the Government for redress of grievances; that no law
shall be made respecting an establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious
profession and worship without discrimination or preference shall forever be
25
allowed.
On 23 April 1900 the American Military Governor of the

Philippines promulgated General Orders No. 58 which shall have
the force and effect of law in criminal matters in the Philippine
Islands from and after the 15th day of May, 1900, more particularly
on prosecution of offenses, rights of an accused at the trial,
arraignment and counsel, and many others which include the right to
bail, the writ of habeas
26
corpus, and the procedure for the issuance of
search warrants.
On 1 July 1902, the United States Congress enacted the
Philippine Bill, which was variously known as the Lodge Act, the
Philippine Organic Act, the Philippine Government Act, section 5 of
which practically re-stated the already quoted instructions
25 10th and 11th paragraphs, President McKinleys Instructions to the Second

Philippine Commission dated April 7, 1900.
26 This General Orders became known as the Rules on Criminal Procedure.
760

of President McKinley. On August 29, 1916, the Philippine

Autonomy Act, popularly known27
as the Jones Law, was enacted, re-
enacting the Bill of Rights.
By the provisions of the Hare-Hawes-Cutting Act, which was
subsequently superseded by the Tydings-McDuffie Law, the
Philippine Legislature was authorized to provide for the election of
delegates to a constitutional convention to formulate and draft a
constitution for the government of the Philippines, but it imposed
certain mandatory provisions, among which was that the constitution
to be drafted shall contain a Bill of Rights. This gave rise to the
1935 Constitution.
Drafted as it was by men of great wisdom and foresight, the 1935
Charter far exceeded the expectation of the American President 28
who
was to approve it. It did not only embody a Bill of Rights, but it
also contained a declared national policy that the promotion of
social justice to insure the well-being and economic
29
security of all
the people shall be the concern of the State, embracing, among
others, the expropriation of lands to be30 subdivided into small lots
and conveyed at costs to individuals, and protection to labor,
especially to working women and minors, and x x x regula(tion of)
the relations between landowner and 31
tenant, and between labor and
capital in industry and agriculture.
When the project of the Civil Code was being drafted, the Code
Commission had taken into account and engrafted into the proposed
code certain fundamental principles embracing not only equity and
justice but also individual rights and family solidarity, among which
were the liberalization of rules concerning womens rights; social
justice, consolidation of the family, equity above strict legalism,
democracy as a way of life, and
27 Section 3, Action of Congress of 1916.

28 Article III, 1935 Constitution. The Committee on the Bill of Rights of the
Convention was chaired by Justice Jose P. Laurel, a delegate from Batangas.
29 Section 5, Article II, Ibid.; italics supplied.
30 Section 4, Article XIII, Ibid.
31 Section 6, Article XIV, ibid.
761
VOL. 191, NOVEMBER 27, 1990 761

32
exaltation of the human personality. Thus a chapter on Human
Relations had been included in the Civil Code containing immutable
principles of justice and fairness and providing sanctions and
additional modes 33
of redress for violation of personal, civil and
political rights.
In the field of penology, several enactments were adopted to
humanize punishment, upon the realization that man is inherently
virtuous and, therefore, potentially a good member of society. We
have today at least four kinds of probation34 laws: probation for
subnormal35 and mentally disturbed persons; 36 probation of drug
offenders; probation
37
for youthful offenders; and probation 38
for
adult offenders. We also have the indeterminate
39
sentence law, and
the laws on allowance for good con-duct, aside from the power of
the Chief Executive to grant pardons and proclaim amnesty to
criminal offenders.
Then came the 1973 Constitution. Inspite of the general
impression that this was a martial rule constitution, it can not be
denied that it contained substantial and significant contributions to
the recognition and respect for human rights. 40
These may be
summarized into the strengthening of the family; recognition of the
vital role of the youths in nation-building and the
41
promotion of their
physical, intellectual and social well-being; expansion of and
spelling out the social justice provision
42
to include equitable diffusion
of property ownership and profits, establishment, maintenance, and
assurance of adequate social services in the field of education,
health, housing,
32 Report of the Code Commission to the President of the Philippines dated

January 26, 1948.
33 Articles 26 & 32, Civil Code of the Philippines,
34 Article 12, Par. 1, Revised Penal Code.
35 Rep. Act No. 6425, as amended.
36 Pres. Decree No. 603, as amended.
37 Pres. Decree No. 968, as amended.
38 Act No. 4103, as amended.
39 Articles 97-99, Revised Penal Code; also Acts Nos. 1533 and 2489.
40 Section 4, Article II, 1973 Constitution.
41 Section 5, Article II, Ibid.
762

employment, welfare, and social security to guarantee

43
the enjoyment
by the people of a decent standard of living, affording protection to
labor, promotion of full employment and equality of employment,
ensuring equal work opportunities regardless of sex, race, or creed,
regulation of the relation between workers and employer, and
ensuring the rights of workers to self-organization, collective
bargaining,
44
security of tenure, and just and humane conditions of
work, formulation and implementation of an agrarian reform
program aimed at 45 emancipating the tenant (farmer) from the
bondage of the soil, all in addition to the traditional formulation of
social justice under the 1935 Charter; constitutionalization
46
of the
exclusionary rule on illegally seized evidence, 47and of the so-called
Miranda Warnings in custodial investigations; and, in matters of
suffrage, the voting age was lowered to eighteen and literacy was
removed
48
as a test for qualification for the exercise of the right to
vote.
The change of Government at the end of February, 1986, saw the
promulgation of Executive Order No. 27 by President Corazon C.
Aquino49 providing for Education to Maximize Respect for Human
Rights, and the drafting of a new Constitution.
The 1987 Constitution is landmark for its concern of human
rights. Although it50 contains redundant provisions on social justice
and allied matters, its most substantial and significant

44 Section 9, Article II, 1973 Constitution.
45 Section 12, Article XIV, Ibid., which was a re-echo of the policy enunciated in
Pres. Decree No. 27.
46 Section 4(2), Article IV, Ibid. What had been paradoxical in this connection was
that the very case which adopted the exclusionary rule ((Stonehill v. Diokno) was an
invalidation of an action of one of the foremost Libertarian and human rightest that
graced our political firmanentSenator Jose Diokno.
47 Section 20, Article IV, Ibid.
48 Section 1, Article VI, Ibid.
49 Dated July 4, 1986, 82 O.G. 3264.
50 There was a story that when an Ex-Justice of the Supreme Court criticized the
1987 Constitution as the worst that was written, another ex-Member of the Supreme
Court who was a member of the Constitutional Commission justified its nomenclature
because of the
763
VOL. 191, NOVEMBER 27, 1990 763

contribution to the cause of human rights is the establishment of an

independent 51Commission on Human Rights,52 providing for its
composition, and its powers and functions. Under Executive
Order No. 163, the effectivity of the creation of the Commission on
53
Human Rights was decreed.
5. Comments and Recommendations
As earlier intimated, too much lip service is given to human rights.

In many instances, it is equated with squatters rights, but no
concrete steps are in sight.
As correctly diagnosed by President Marcos, the greatest
problem in the protection of human rights is the conflict between
authority and liberty, and he suggested that it is the business of
enlightened modern legal systems to strike a balance between the
two in making a just, humane public order, and that civilized
societies have thrived on the willingness of human beings to adjust
54
to the claims of the community.
Perhaps it is time for legislators and the Commissioners of
Human Rights to initiate or propose positive legislations, which
must embody the list of rights protected, indicating their parameters,
providing for the penal and civil sanctions for their violations, and
creating a collegiate Court of Human Rights to try and decide
exclusively cases involving human rights.
o0o
time constraint given to them. Indeed, such time constraint must have prevented
them from drafting a Constitution but did not prevent them from writing a novel.
51 Section 17, Article XIII, 1987 Constitution.
52 Section 18, Article XIII, Ibid.
53 Dated May 5, 1987.
54 Keynote Address, 58th Conference of the International Law Association,
August 28, 1978.
764
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11/17/2017 SUPREME COURT REPORTS ANNOTATED VOLUME 191

VOL. 191, NOVEMBER 27, 1990 739

HISTORICAL DEVELOPMENT OF THE LAWS ON HUMAN

* Judge, Regional Trial Court, National Capital Judicial Region, Manila.

740 SUPREME COURT REPORTS ANNOTATED

internationally and in the Philippines.

2. The Philosophers and Human Rights

As early as before the Birth of Christ (BC), some political thinkers

VOL. 191, NOVEMBER 27, 1990 741

Historical Development of the Laws on Human Rights

ing the citizenry. He theorized that since man is by nature a political

742 SUPREME COURT REPORTS ANNOTATED

VOL. 191, NOVEMBER 27, 1990 743

The Magna Carta of June of 1215a grant of privileges conceded

744 SUPREME COURT REPORTS ANNOTATED

The Charter failed, however, as an immediate settlement. The

14 Privileges were then being purchased from the King.

VOL. 191, NOVEMBER 27, 1990 745

fused the loansall in order to pursue external policies as

and consequently Charles I decreed martial law. This measure

746 SUPREME COURT REPORTS ANNOTATED

The inexorable movement for more individual rights had spread

VOL. 191, NOVEMBER 27, 1990 747

meeting in Philadelphia at the Pennsylvania State House (now

independence for at least six months; Benjamin Franklin of

748 SUPREME COURT REPORTS ANNOTATED

In continental Europe peoples demand for individual rights also

VOL. 191, NOVEMBER 27, 1990 749

thors to be universal in scope. At the same time, the authors were

The representatives of the French people, constituted as a National

the citizens, by being founded henceforward on the simple and incontestible

750 SUPREME COURT REPORTS ANNOTATED

IX. Every man being presumed innocent until judged guilty, if it is

VOL. 191, NOVEMBER 27, 1990 751

necessity, certified by law, and then on condition of a just compensation

In American constitutional law and history the term Bill of Rights

religion, speech, press, assembly and petition); the 4th Amendment

752 SUPREME COURT REPORTS ANNOTATED

state documents the Virginia Bill of Rights, drafted in large part by

15 Jean Pictet on Humanitarian Law, quoted in Origin and Devel

VOL. 191, NOVEMBER 27, 1990 753

the Swiss Government to convene in 1864 an international

opment of International Humanitarian Law, Francoise Bory, International

754 SUPREME COURT REPORTS ANNOTATED

VOL. 191, NOVEMBER 27, 1990 755

objectives of the International Trusteeship System. Article 8 of the

rights. The Declaration would define the fundamental rights and

756 SUPREME COURT REPORTS ANNOTATED

Declaration cover three groups of rights: civil and political rights,

18 Marcos, Ibid., pp. 8, 9, 10.

VOL. 191, NOVEMBER 27, 1990 757

Almost twenty years after the adoption of the Universal Declaration

4. Human Rights Development in the Philippines

As may be observed in the foregoing, human rights historical

758 SUPREME COURT REPORTS ANNOTATED

VOL. 191, NOVEMBER 27, 1990 759

must be imposed these inviolable rules:

That no person shall be deprived of life, liberty, or property without due

On 23 April 1900 the American Military Governor of the

25 10th and 11th paragraphs, President McKinleys Instructions to the Second

760 SUPREME COURT REPORTS ANNOTATED

of President McKinley. On August 29, 1916, the Philippine

27 Section 3, Action of Congress of 1916.